189 S.W.2d 364 | Ark. | 1945
The Fidelity Company is a partnership engaged in the insurance brokerage business. During 1939 and until June 10, 1943, and prior thereto, Lee Ables was bookkeeper for the Company; and while acting in that capacity he is alleged to have taken more than $39,000. The complaint states that Paul Brooks was a "bookmaker" residing in Pulaski County, where he accepted bets on horse races. During, the period in question, Ables is alleged to have paid Brooks "a large proportion" of the money he took from the Company, the exact sum being unknown to the plaintiffs. It was gambled by Ables and won by Brooks. The prayer was that the defendant be required to submit an account showing all sums placed with him by Ables for betting "during the years 1939, 1940, 1941, 1942, and until June 10, 1943; [and] that the plaintiffs have a decree against the defendant for $39,000 or such sums as may be shown by proper accounting to have been paid to [Brooks] by Ables."
In sustaining a demurrer the Court held (a) that a cause of action was not stated; (b) that the relief prayed for contemplated discovery of information which would *1095 subject the defendant to criminal prosecution; and (c) that the Court was without jurisdiction because the plaintiff had an adequate remedy of law.
Appellee contends that under the common law persons who lost money by gambling did not have a right of action for recovery; and that in Arkansas the common law was enlarged (Pope's Digest, 6112) so that in certain circumstances the loser could sue. The section of Pope's Digest is a part of the Revised Statutes (Chapter 68, 1), and its evolution is traced by Chief Justice McCULLOCH in Lane v. Alexander,
The right of action given by Pope's section 6112 extends to persons who lose money or property at any game or gambling device, or through any bet or wager whatever, provided suit is instituted within ninety days after the money or property so lost has been "paid over." The right survives to the heirs, executors, administrators, or creditors of the person who loses in the manner mentioned.
In circumstances such as many of the cases deal with, one whose property is appropriated by a third person in an unlawful manner and delivered to a gambler as the incident of betting, is permitted at common law to recover because ownership has not in fact passed; but not so as to gambling transactions between participants who used their own money.
The basic principle was expressed in Smith v. Ray,
Mr. Justice BENNETT, speaking for the Supreme Court of Vermont in Burnham v. Fisher,
An Illinois case is in line with what the Vermont Court held. See McAllister v. Oberne, Hosick Co.,
Judgment was affirmed in Murry et al. v. Aull,
The Supreme Court of Oklahoma, after carefully reviewing cases applicable to transactions such as we are dealing with, made this statement: "There is no doubt as to the legal proposition that a third person whose money has been lost to another at gambling may recover the same in an action at law against the person *1097
or persons winning or receiving the same." Becker v. Fitch,
In holding that the State was not the proper party to bring suit on behalf of Mrs. William A. Walley to recover money lost by her husband in gambling, the Supreme Court of Indiana held that Mrs. Walley could have proceeded at common law. Ervin v. State,
There is nothing to indicate a legislative intention, through adoption of that part of the Revised Statutes now appearing as Section 6112 of Pope's Digest, to make the remedy exclusive of common law rights, other than in respect of transactions between the immediate parties. It must be held, therefore, that the complaint stated a cause of action. Nor is the defendant privileged under Section 8, Article II, of the Constitution, to refuse to give testimony. While courts cannot compel persons, "in any criminal case to be a witness against themselves," most of the transaction mentioned in the complaint are alleged to have occurred more than three years ago. If indicted or informed against because of disclosures made while responding to judicial direction that discovery be had, the witness so testifying has only to plead limitation in order to avail himself of that security the Constitution gives. Conversely, his plea of limitation against the plaintiffs for debt would not, as a matter of course, be good; for it might be shown (as the demurrer indicates) that Brooks concealed the transactions to such an extent that the plea would be unavailing.
Section six of Chapter 68, Revised Statutes, (Pope's Digest, 6117) provides that "in all suits under this chapter, the plaintiff may call on the defendant to answer, on oath, any interrogatory, touching the case, and, if the defendant refuse to answer, the same shall be taken as confessed." The next section is: "Such answer shall not be admitted as evidence against such person in any prosecution by indictment."
While these provisions pertain strictly to the statutory transactions and rights set out, there is, in general, *1098 implication of public policy regarding the extent to which immunity of one whose testimony would tend to incriminate him should go. Greenleaf on Evidence, v. 1, p. 600, 15th ed., cites holding that if the lapse of time bars prosecution to which the witness would otherwise be exposed, "he is bound to answer."
The United States Supreme Court (Brown v. Walker,
It was said in the opinion that the Act was supposed to have been passed to meet the Court's decision in Counselman v. Hitchcock,
In holding that the constitutional protection was "fully accomplished" through the immunity or "general amnesty" provided by the statute, the Court ruled that the witness should testify. It was then said that, as a general rule of law; ". . . if a prosecution for a crime, concerning which the witness is interrogated, is barred by the statute of limitations, he is compelled to answer." Parkhurst v. Lowten, 1 Merivale 391 400; Calhoun v. Thompson, 56 Alabama, 166, 28 Am. Rep. 754; Mahanke v. Cleland,
Wharton, Criminal Evidence, v. 1, 10th ed., p. 970, mentions (by footnote reference) the rule laid down in Counselman v. Hitchcock, supra, calling attention to the fact that it was later overruled. He also discusses the holding that a witness "cannot be shielded from the personal disgrace attaching to the exposure of his crime" by reliance on the constitutional provision.
Mr. Greenleaf, in the volume and edition heretofore cited, pp. 599-600, says that in cases where the privilege may be claimed, the right is personal and not that of the party [defendant]; "counsel, therefore, will not be allowed to make the objection."
Wigmore, in his work on Evidence, v. 8, 3d ed., pp. 317-18, comments extensively on abuses to which the privilege against compulsory-self incrimination has been subjected. His view is that the letter of the law should not be enlarged by sentimental considerations. "Indirectly and ultimately," says Wigmore, "it works for good, — for the good of the innocent accused and of the community at large. But directly and concretely it works for ill, — for the protection of the guilty and the consequent derangement of civic order. The current judicial habit is to ignore its latter aspect, and to laud it undiscriminatingly with false cant."2
It is finally urged by appellee in his brief that Chancery Court is without jurisdiction. Since discovery — and, within limitations, matters of accountancy — are involved, resort to equity was not inappropriate.
Reversed, with directions to overrule the demurrer.